S.Amdt. 3914

SA 3914. Mr. FEINGOLD (for himself, Mr. Menendez, and Mr. Dodd)
submitted an amendment intended to be proposed to amendment SA 3911
proposed by Mr. Rockefeller (for himself and Mr. Bond) to the bill S.
2248, to amend the Foreign Intelligence Surveillance Act of 1978, to
modernize and streamline the provisions of that Act, and for other
purposes; which was ordered to lie on the table; as follows:

On page 6, strike line 4 and all that follows through page
17, line 2, and insert the following:
``(2) may not intentionally target a person reasonably
believed to be located outside the United States if a
significant purpose of such acquisition is to acquire the
communications of a particular, known person reasonably
believed to be located in the United States, except in
accordance with title I;
``(3) may not intentionally target a United States person
reasonably believed to be located outside the United States,
except in accordance with sections 704, 705, or 706; and
``(4) shall be conducted in a manner consistent with the
fourth amendment to the Constitution of the United States.
``(c) Conduct of Acquisition.--An acquisition authorized
under subsection (a) may be conducted only in accordance
with--
``(1) a certification made by the Attorney General and the
Director of National Intelligence pursuant to subsection (f);
and
``(2) the targeting and minimization procedures required
pursuant to subsections (d) and (e).
``(d) Targeting Procedures.--
``(1) Requirement to adopt.--The Attorney General, in
consultation with the Director of National Intelligence,
shall adopt targeting procedures that are reasonably designed
to ensure that any acquisition authorized under subsection
(a) is limited to targeting persons reasonably believed to be
located outside the United States, and that an application is
filed under title I, if otherwise required, when a
significant purpose of an acquisition authorized under
subsection (a) is to acquire the communications of a
particular, known person reasonably believed to be located in
the United States.
``(2) Judicial review.--The procedures referred to in
paragraph (1) shall be subject to judicial review pursuant to
subsection (h).
``(e) Minimization Procedures.--
``(1) Requirement to adopt.--The Attorney General, in
consultation with the Director of National Intelligence,
shall adopt, consistent with the requirements of section
101(h) or section 301(4), minimization procedures for
acquisitions authorized under subsection (a).
``(2) Judicial review.--The minimization procedures
required by this subsection shall be subject to judicial
review pursuant to subsection (h).
``(f) Certification.--
``(1) In general.--
``(A) Requirement.--Subject to subparagraph (B), prior to
the initiation of an acquisition authorized under subsection
(a), the Attorney General and the Director of National
Intelligence shall provide, under oath, a written
certification, as described in this subsection.
``(B) Exception.--If the Attorney General and the Director
of National Intelligence determine that immediate action by
the Government is required and time does not permit the
preparation of a certification under this subsection prior to
the initiation of an acquisition, the Attorney General and
the Director of National Intelligence shall prepare such
certification, including such determination, as soon as
possible but in no event more than 168 hours after such
determination is made.
``(2) Requirements.--A certification made under this
subsection shall--
``(A) attest that--
``(i) there are reasonable procedures in place for
determining that the acquisition authorized under subsection
(a) is targeted at persons reasonably believed to be located
outside the United States and that such procedures have been
approved by, or will be submitted in not more than 5 days for
approval by, the Foreign Intelligence Surveillance Court
pursuant to subsection (h);
``(ii) the procedures referred to in clause (i) are
consistent with the requirements of the fourth amendment to
the Constitution of the United States and do not permit the
intentional targeting of any person who is known at the time
of acquisition to be located in the United States;
``(iii) the procedures referred to in clause (i) require
that an application is filed under title I, if otherwise
required, when a significant purpose of an acquisition
authorized under subsection (a) is to acquire the
communications of a particular, known person reasonably
believed to be located in the United States;
``(iv) a significant purpose of the acquisition is to
obtain foreign intelligence information;
``(v) the minimization procedures to be used with respect
to such acquisition--

``(I) meet the definition of minimization procedures under
section 101(h) or section 301(4); and
``(II) have been approved by, or will be submitted in not
more than 5 days for approval by, the Foreign Intelligence
Surveillance Court pursuant to subsection (h);

``(vi) the acquisition involves obtaining the foreign
intelligence information from or with the assistance of an
electronic communication service provider; and
``(vii) the acquisition does not constitute electronic
surveillance, as limited by section 701; and
``(B) be supported, as appropriate, by the affidavit of any
appropriate official in the area of national security who
is--
``(i) appointed by the President, by and with the consent
of the Senate; or
``(ii) the head of any element of the intelligence
community.
``(3) Limitation.--A certification made under this
subsection is not required to identify the specific
facilities, places, premises, or property at which the
acquisition authorized under subsection (a) will be directed
or conducted.
``(4) Submission to the court.--The Attorney General shall
transmit a copy of a certification made under this
subsection, and any supporting affidavit, under seal to the
Foreign Intelligence Surveillance Court as soon as possible,
but in no event more than 5 days after such certification is
made. Such certification shall be maintained under security
measures adopted by the Chief Justice of the United States
and the Attorney General, in consultation with the Director
of National Intelligence.
``(5) Review.--The certification required by this
subsection shall be subject to judicial review pursuant to
subsection (h).
``(g) Directives and Judicial Review of Directives.--
``(1) Authority.--With respect to an acquisition authorized
under subsection (a), the Attorney General and the Director
of National Intelligence may direct, in writing, an
electronic communication service provider to--
``(A) immediately provide the Government with all
information, facilities, or assistance necessary to
accomplish the acquisition in a manner that will protect the
secrecy of the acquisition and produce a minimum of
interference with the services that such electronic
communication service provider is providing to the target;
and
``(B) maintain under security procedures approved by the
Attorney General and the Director of National Intelligence
any records concerning the acquisition or the aid furnished
that such electronic communication service provider wishes to
maintain.
``(2) Compensation.--The Government shall compensate, at
the prevailing rate, an electronic communication service
provider for providing information, facilities, or assistance
pursuant to paragraph (1).
``(3) Release from liability.--Notwithstanding any other
law, no cause of action shall lie in any court against any
electronic communication service provider for providing any
information, facilities, or assistance in accordance with a
directive issued pursuant to paragraph (1).
``(4) Challenging of directives.--
``(A) Authority to challenge.--An electronic communication
service provider receiving a directive issued pursuant to
paragraph (1) may challenge the directive by filing a
petition with the Foreign Intelligence Surveillance Court,
which shall have jurisdiction to review such a petition.
``(B) Assignment.--The presiding judge of the Court shall
assign the petition filed

[[Page S299]]

under subparagraph (A) to 1 of the judges serving in the pool
established by section 103(e)(1) not later than 24 hours
after the filing of the petition.
``(C) Standards for review.--A judge considering a petition
to modify or set aside a directive may grant such petition
only if the judge finds that the directive does not meet the
requirements of this section or is otherwise unlawful. If the
judge does not modify or set aside the directive, the judge
shall immediately affirm such directive, and order the
recipient to comply with the directive. The judge shall
provide a written statement for the record of the reasons for
a determination under this paragraph.
``(D) Continued effect.--Any directive not explicitly
modified or set aside under this paragraph shall remain in
full effect.
``(E) Contempt of court.--Failure to obey an order of the
Court issued under this paragraph may be punished by the
Court as contempt of court.
``(5) Enforcement of directives.--
``(A) Order to compel.--In the case of a failure to comply
with a directive issued pursuant to paragraph (1), the
Attorney General may file a petition for an order to compel
compliance with the directive with the Foreign Intelligence
Surveillance Court, which shall have jurisdiction to review
such a petition.
``(B) Assignment.--The presiding judge of the Court shall
assign a petition filed under subparagraph (A) to 1 of the
judges serving in the pool established by section 103(e)(1)
not later than 24 hours after the filing of the petition.
``(C) Standards for review.--A judge considering a petition
shall issue an order requiring the electronic communication
service provider to comply with the directive if the judge
finds that the directive was issued in accordance with
paragraph (1), meets the requirements of this section, and is
otherwise lawful. The judge shall provide a written statement
for the record of the reasons for a determination under this
paragraph.
``(D) Contempt of court.--Failure to obey an order of the
Court issued under this paragraph may be punished by the
Court as contempt of court.
``(E) Process.--Any process under this paragraph may be
served in any judicial district in which the electronic
communication service provider may be found.
``(6) Appeal.--
``(A) Appeal to the court of review.--The Government or an
electronic communication service provider receiving a
directive issued pursuant to paragraph (1) may file a
petition with the Foreign Intelligence Surveillance Court of
Review for review of the decision issued pursuant to
paragraph (4) or (5) not later than 7 days after the issuance
of such decision. The Court of Review shall have jurisdiction
to consider such a petition and shall provide a written
statement for the record of the reasons for a decision under
this paragraph.
``(B) Certiorari to the supreme court.--The Government or
an electronic communication service provider receiving a
directive issued pursuant to paragraph (1) may file a
petition for a writ of certiorari for review of the decision
of the Court of Review issued under subparagraph (A). The
record for such review shall be transmitted under seal to the
Supreme Court of the United States, which shall have
jurisdiction to review such decision.
``(h) Judicial Review of Certifications and Procedures.--
``(1) In general.--
``(A) Review by the foreign intelligence surveillance
court.--The Foreign Intelligence Surveillance Court shall
have jurisdiction to review any certification required by
subsection (c) and the targeting and minimization procedures
adopted pursuant to subsections (d) and (e).
``(B) Submission to the court.--The Attorney General shall
submit to the Court any such certification or procedure, or
amendment thereto, not later than 5 days after making or
amending the certification or adopting or amending the
procedures.
``(2) Certifications.--The Court shall review a
certification provided under subsection (f) to determine
whether the certification contains all the required elements.
``(3) Targeting procedures.--The Court shall review the
targeting procedures required by subsection (d) to assess
whether the procedures are reasonably designed to ensure that
the acquisition authorized under subsection (a) is limited to
the targeting of persons reasonably believed to be located
outside the United States, and are reasonably designed to
ensure that an application is filed under title I, if
otherwise required, when a significant purpose of an
acquisition authorized under subsection (a) is to acquire the
communications of a particular, known person reasonably
believed to be located in the United States.
______